Responsibilities are a part of water rights

Jack Flobeck Published: December 22, 2013 | 12:00 am 0

For the past many years, attending water meetings across Colorado often meant hearing a big gruff guy in a Stetson rise to yell, "that's my water." Once in Grand Junction, the writer, in his boots and Stetson, stepped between two men about to throw punches, after the perennial remark, "that's my water." Luckily, this writer outweighed the potential combatants by 50 pounds each and kept a large city water manager from physical harm at the hands of an angry water rights owner.

OK, so it's your water, but the $64 million question is: Are you willing to really face up to the responsibilities of those water rights, and what do we mean by responsibilities?

We were taught years ago that if you were a citizen, you had rights, but also responsibilities. Modern educators, spending billions, no longer teach reading, writing, arithmetic, and responsibilities; now concentrating on bigger sports stadiums, better computers, and higher salaries. It's no one's fault but our own. So, too, it's the same with water. We have outlined suggestions on how Colorado could cope with drought and recommended better flood control, so that our priceless resource doesn't rampage down to other states, without capture or control. Will any of the rights owners permit the overflow to be harnessed, are they responsible for downstream damage, and would they tolerate real conservation, or are they only interested in their pocketbooks? Are they ready to say, "It's my water and I'm responsible for any damage downstream."

Solomon said, "There's nothing new under the sun," and wouldn't you know, someone thought this problem through, over 4,000 years ago. I am indebted to local law historian, David Griffith, for suggesting my research into this subject.

The Code of Hammurabi was written in stone on an 8-foot black diorite column in what is now Baghdad and contains several concepts worth considering in 21st-century America. Consider:

No. 53 - If any one be too lazy to keep his dam in proper condition, and does not so keep it, if then the dam break and all the fields be flooded, then shall he in whose dam the break occurred be sold for money, and the money, and the money shall be paid to replace the corn which he has caused to be ruined.

No. 54 - If he be not able to replace the corn, then he and his possessions shall be divided among the farmers whose corn he has flooded.

No. 55 - If anyone open his ditches to water his crop, but is careless, and the water flood the field of his neighbor, then he must pay his neighbor corn for his loss.

No. 56 - If a man let in the water, and the water overflow the plantation of his neighbor, he shall pay ten gur of corn for every ten gan of land."

Did Hammurabi nail responsibility; and are our irrigators with 'first in time and first in right,' ready to accept the consequences, which follow from most favored ownership? Is it now time, with imminent water shortages; to open the debate to include discussion of private, public, or combined public/private efforts to construct catch basins, rain harvesting culverts, and efficient localized storage for drought relief as well as for fire mitigation.

Should we reconsider some of these 5,000-year-old tenets, while simultaneously reviewing the relationships of farms on the borders of neighboring states? Texas, Kansas, Utah, Wyoming, New Mexico, and Arizona would certainly be anxious to cooperate in decisions concerning shared responsibility for floods and salting. Should multistate solutions be considered in future water plans?

These and many other questions must be faced soon and squarely by our water planners, but always looming in the background is Maj. John Wesley Powell's haunting warning, from 136 years ago, that a future where Western state borders bisected rivers and natural features; would result in nothing but lawsuits and chaos.

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Jack Flobeck is the founder of Aqua Prima Center, a nonprofit think tank for water research. Readers can contact him at colojackf@msn.com.

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